Citation Nr: A21008371 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 210308-140911 DATE: April 26, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a total disability rating based on unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT Throughout the entire period on appeal, the Veteran’s PTSD has most closely approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from April 1951 to March 1953. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). A brief review of the procedural history is necessary. The Veteran filed a claim for service connection for PTSD in August 2014. In a January 2016 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for PTSD with an evaluation of 70 percent, effective August 7, 2014. The Veteran submitted a Notice of Disagreement in July 2016, asserting that his service-connected PTSD was more severe than what was reflected in his assigned disability rating. In an August 2016 Statement of the Case, the AOJ denied an increased rating for the service-connected PTSD. The Veteran appealed this decision in a VA Form 9 submitted in August 2016. In August 2020, the Board remanded the claim for further development and included the issue of entitlement to a TDIU pursuant to Rice. Rice v. Shinseki, 22 Vet. App. 447 (2009). In a February 2021 Supplemental Statement of the Case, the AOJ denied an increased rating for the service-connected PTSD. The Veteran timely appealed the decision, opting in the Appeals Modernization Act, by submitting a March 2021 Decision Review Request: Board Appeal (Notice of Disagreement) and requested direct review of the evidence considered by the AOJ. See March 2021 VA Form 10182. Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are appropriate for when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The Veteran is in receipt of a 70 percent rating for his PTSD. The disability is rated under the General Rating Formula for Mental Disorders (General Rating Formula). He asserts that his service-connected PTSD is more severe than is reflected by his current rating. Under the General Rating Formula, a 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when the psychiatric disorder results in total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Although the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of occupational and social impairment. Id. The Veteran was first afforded a VA PTSD examination in December 2015. The Veteran reported symptoms including anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and impaired impulse control, such as unprovoked irritability with periods of violence. The examination report noted further symptoms including hypervigilance, hyperarousal, social anxiety with isolating and avoidant behaviors, and decreased concentration. He reported that he lived alone and spent most of his time engaged in solitary activities, but noted that he has been involved in select community service programs as a volunteer over the years. He stated that he had occasional brief phone calls with two cousins that do not live near him. On mental examination, the Veteran was alert, attentive, cooperative and appropriate, with a moderately anxious affect and mildly dysphoric mood. The examiner reported that the Veteran’s cognitive and intellectual functioning were normal, with good insight and judgment. The examiner opined that the Veteran exhibited occupational and social impairment with reduced reliability and productivity. The Veteran was next afforded a VA PTSD examination in November 2020. The Veteran reported symptoms of depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; inability to establish and maintain effective relationships; and obsessional rituals which interfere with routine activities. He stated that he lived with his nephew who is disabled. On mental examination, the Veteran’s thought processes were coherent and goal directed, his mood was dysphoric, and his insight was fair to good. The examiner reported that the Veteran’s mood was cooperative and that his social skills were adequate. The examiner opined that the Veteran exhibited total occupational and social impairment and noted that the Veteran was not capable of managing his financial affairs because of concentration problems, organization difficulties, and memory problems. He further noted that the Veteran’s symptoms appeared to be mild to moderate in severity and that the Veteran reported experiencing panic attacks two times per week. The examiner stated that the Veteran appeared to have no limitation in his ability to understand and remember simple directions and instructions, but that he appeared to have marked limitation in his ability to remember and apply complex directions and instructions. The examiner noted that the Veteran appeared to be markedly limited in his ability to regulate emotions and maintain wellbeing. He reported that the Veteran’s suicide risk level is not at elevated acute risk. As the November 2020 VA examination report was conflicting as to the severity of the Veteran’s service-connected PTSD, an addendum opinion was obtained in January 2021 to clarify whether the Veteran’s PTSD symptoms were severe enough to result in total occupational and social impairment and whether the Veteran was capable of managing his financial affairs, or if the symptoms were mild to moderate in severity as noted in the remarks section of the report. After reviewing the December 2015 and November 2020 VA PTSD examinations, as well as the January 2016 rating decision, the January 2021 VA examiner stated that the total occupational and social impairment endorsed by the examiner of the November 2020 VA examination was not consistent with the degree of impairment that was implied by the symptoms reported. She explained that total occupational and social impairment would require either gross impairment in thought processes or communication, delusions and/or hallucinations, grossly inappropriate behavior, persistent danger of hunting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name. She then explained that the November 2020 examination report did not note gross impairment in thought processes or communication, delusions and/or hallucinations, grossly inappropriate behavior, persistent danger of hunting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name. She stated that the examination report did note mild memory loss and cited struggles with respect to remembering and/or applying complex directions and instructions. She said that marked limitations is an ability to regulate emotions and maintain a wellbeing were also noted. She explained that these limitations and struggles, along with other symptoms noted in the examination report, were more consistent with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Additionally, she noted that there was no indication per the November 2020 examination report or the December 2016 examination report that the Veteran’s competency with handling funds is impaired to the point that he should be deemed incompetent. VA treatment records reflect symptoms including chronic sleep impairment, nightmares, anxiety, suspiciousness, mild memory loss, disturbances of mood and motivation, panic attacks, and difficulty in establishing and maintaining effective work and social relationships. Throughout the period on appeal VA treatment records noted that the Veteran did not endorse suicidal or homicidal ideation or auditory or visual hallucinations. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s PTSD was manifested by symptoms warranted a 100 percent evaluation at any time during the period on appeal, as the evidence does not show functional impairment comparable to total occupational and social impairment. The Board notes that throughout the entire period on appeal, the Veteran’s PTSD symptoms more closely approximate the criteria for a 70 percent rating. Although the November 2020 VA examiner found that the Veteran had total occupational and social impairment, when asked to review the November 2020 VA examination report and determine whether the Veteran’s PTSD symptoms most closely approximated total occupational and social impairment or occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood, the January 2021 VA examiner found that they most closely approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. She adequately supported this finding by citing information provided by the Veteran during the November 2020 examination and information contained in the November 2020 examination report. Further there is no evidence of any of the symptoms described in the 100 percent rating, such as gross impairment in thought processes or communications; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger or hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Given these facts, the Board concludes that throughout the entire period on appeal, the Veteran’s PTSD most closely approximated the requirements for a 70 percent evaluation. Consequently, an increased rating greater than 70 percent for PTSD is not warranted. Ultimately, the Board concludes that the preponderance of the evidence is against a finding that the Veteran’s PTSD was manifested by symptoms warranting a 100 percent rating, as the evidence does not show functional impairment comparable to total occupational and social impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9411; Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). “[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio, 713 F.3d at 117. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to a TDIU is remanded. Although the Board regrets the additional delay, further development is required before a decision may be made on the merits of this issue on appeal. Following the August 2020 Board remand, the RO provided the Veteran with a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, in December 2020 to complete, sign, and return. In his December 2020 VA Form 21-8940, the Veteran reported that his service-connected PTSD affected his full-time employment on January 1, 1995. He further reported that he last worked full-time and became too disabled to work on January 1, 1995. However, he then reported that he did not leave his last job because of disability, which is contrary to what he reported elsewhere in his VA Form 21-8940. Therefore, upon remand, clarification is needed from the Veteran as to whether he left his last job due to his service-connected PTSD. Additionally, the Veteran’s last employer, Shell Oil Co., was contacted in January 2021 and asked to complete a VA Form 21-4192 for the Veteran. The correspondence further advised that if the employer’s records concerning the Veteran’s employment had been destroyed or were otherwise unavailable, a negative response is required. The employer responded in February 2021 and advised the RO that it had no records for an employee with the Veteran’s name or Social Security number. Within days of receiving the employer’s response, the RO issued a Supplemental Statement of the Case in February 2021 denying entitlement to a TDIU. However, the RO did not notify the Veteran or his representative of the negative response from his employer or give the Veteran and his representative an opportunity to respond to the negative response and provide any documentation or evidence, such as tax records, to show when and where he was last employed before it issued the February 2021 Supplemental Statement of the Case. The Board therefore finds this constitutes a duty to assist error under 38 C.F.R. § 3.159(c)(4), which existed at the time of the appealed February 2021 Supplemental Statement of the Case. Accordingly, this claim must be remanded to afford the Veteran and his representative a reasonable amount of time to respond and to provide evidence, such as tax records that show when and where the Veteran last worked, that disputes Shell Oil Co.’s negative response. The matters are REMANDED for the following action: 1. Contact the Veteran to request clarification on the VA 21-8940, Application for TDIU, that he submitted in December 2020. Advise him that although he listed January 1, 1995 (the last date of his claimed employment with Shell Oil Co.) as the date his disability affected his full-time employment, the last date he worked full-time, and the date he became too disabled to work because of his service-connected PTSD, he then reported that he did not leave his job because of his disability. Because the latter answer appears to be contradictory to the other information provided by the Veteran in his application, clarification is needed. The Veteran should be asked whether he left his job with Shell Oil Co. on January 1, 1995 because of his service-connected PTSD. If the answer is yes, solicit an amended VA 21-8940, Application for TDIU, from the Veteran to amend the answer to the question regarding whether the Veteran left his last job/self-employment because of his disability. The Veteran and his representative should also be notified of the February 2021 response from the Veteran’s claimed last employer, Shell Oil Co., in which the employer stated that it had no record of any employee by the Veteran’s name or Social Security number. The Veteran and his representative should be given a reasonable amount of time to respond and to provide evidence, such as tax records that show when and where the Veteran last worked, that disputes the employer’s negative response. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.